Wet'suwet'en: What's the difference between the elected band council and hereditary chiefs?

TORONTO --
Protests across the country in support of the Wet’suwet’en hereditary chiefs have prompted questions surrounding the difference between these chiefs and elected band councils -- and the answer is complicated.

Essentially, the hereditary chiefs oversee the management of traditional lands and their authority predates the imposed colonial law, which formed the elected band council.

While the band council is in support of the Coastal GasLink pipeline, the hereditary chiefs are not.

“(The band council has) done their due diligence and they want to be part of this economic initiative, create jobs for their people, be part of the economy, and they balanced the environment and the economy,” National Chief Perry Bellegarde of the Assembly of First Nations told CTV’s Power Play earlier this week.

“In the ancestral territory lands of the Wet'suwet'en peoples, it’s the hereditary chiefs and their clans and their big houses that have the jurisdiction,” Bellegarde added. “That’s the piece that’s missing, so when Coastal GasLink and governments come in, they didn’t bring the Wet'suwet'en nation and the proper people in place to deal with their ancestral lands.”

Anti-pipeline protests in support of the hereditary chiefs have halted train routes, ferry ports and busy intersections across the country since late last week.

In Victoria, B.C., protesters blocked government officials and media members from entering the British Columbia legislature on Tuesday ahead of the provincial government’s throne speech. A day later, British Columbia Premier John Horgan acknowledged the sometimes confusing nature of the two distinct groups.

“There’s a misunderstanding broadly of what hereditary leadership is and we’re working hard to figure that out with the Wet'suwet'en and others,” he told reporters.

WHAT ARE HEREDITARY CHIEFS?

Hereditary chiefs represent different houses that make up the First Nation as a whole. Their titles are passed down through generations and predate colonization.

“The hereditary chiefs draw their authority from Wet'suwet'en law, so their law is the law that pre-exists colonization in the territory,” Kim Stanton, a lawyer at Goldblatt Partners LLP who specializes in Aboriginal law, told CTVNews.ca in a phone interview Thursday.

“The hereditary chiefs’ authority is with respect to all of their ancestral lands and those are the lands that they're seeking to protect.”

In 1997, the Wet’suwet’en people were part of Delgamuukw v. British Columbia, which ultimately upheld Indigenous peoples’ land claims to land that had never been ceded through a treaty, which includes Wet’suwet’en Nation and much of British Columbia.

“What the chief justice of the time said was that the government should be negotiating with the hereditary chiefs to determine title and we never got around to doing that, ‘we’ being the Canadian state,” Stanton said. “The hereditary chiefs tried for decades to have their title recognized and tried using the Canadian legal system…and the Canadian legal system failed them.

It’s not surprising that they would now be in a situation where they're having to defend their ancestral territory.”

WHAT ARE ELECTED BAND COUNCILS?

On the other hand, elected band councils -- as the title suggests -- are elected members of the community.

These councils were the result of the Indian Act, which was first established in 1876 and defined how the Canadian government interacts with Indigenous people. They were formed to impose a leadership structure that more resembled Canada’s system of governance.

“They don’t have the authority under the Indian Act to make decisions on traditional territory,” Pam Palmater, an Indigenous lawyer and the chair in Indigenous Governance at Ryerson University, told CTV’s Power Play on Thursday.

The councils are elected by people holding the title of “Indian status” under the Indian Act, which comes with a whole host of issues, Stanton said, as the federal government can essentially determine who votes for council.

“Those registration provisions have been subject to many, many legal challenges because they are rife with discrimination and have been since they were put into effect,” she said.

Stanton added that the Indian Act further complicates things in British Columbia because much of the province was never ceded to colonization.

“The Indian Act jurisdiction has been imposed upon them without them having actually ceded their land, so it's actually illegitimate, but the Canadian state doesn't recognize that it doesn't have a legal basis for its authority there,” she said.

“We're in a situation where Canada and B.C. assume that they have jurisdiction, when in fact, they never legally got it.”

Stanton said it’s important to note that despite all 20 elected band councils agreeing to build the Coastal GasLink pipeline, a lot of the time these councils are forced into an agreement due to critical underfunding from the federal government.

“I wouldn't say that chiefs and council entering into impact benefit agreements, for example, is necessarily an indication of unqualified support for a pipeline,” she said.

WHAT HAPPENS NEXT?

While it appears the demonstrations could last for the foreseeable future, Bellegarde believes it’s best if the Wet'suwet'en people are left to resolve their differences on their own.

“What we’ve got to encourage right now, to resolve this, is to make sure the Wet'suwet'en peoples themselves get together,” he said. “Get together into their long houses, their big houses, and have the feasts and the ceremonies and have their laws and traditions govern how this is resolved.”

Horgan agreed with Bellegarde that the most effective approach might be to just let the Wet’suwet’en work it out amongst themselves.

“I’ve heard them say it repeatedly that: ‘We need to come together as Wet’suwet’en people to figure that out,’” he said.

Wet'suwet'en Hereditary Chiefs from left, Rob Alfred, John Ridsdale, centre and Antoinette Austin, who oppose the Coastal Gaslink pipeline take part in a rally in Smithers B.C., on Friday January 10, 2020. THE CANADIAN PRESS/Jason Franson